Virtual reality (VR) and Artificial Intelligence (AI) have been two of the most high-profile technological advancements of the last two years. Much of the regulatory and policy focus has centred on AI, particularly its advancement into so-called ‘super-intelligence’ and its ability to reach the capacity to overtake human capabilities to the point of job replacement. This focus can be attributed in part to the speed at which AI has developed and its placement in the lexicon of the average person through its open expansion in platforms such as ChatGPT. In contrast, virtual reality, despite its promises, is far from being a regular feature of our daily lives.
The beginning of the mainstream recognition of VR occurred in 2021 when Facebook rebranded itself to ‘Meta’ to encompass the technology company’s expansion into the virtual reality market. In 2014, Meta (then Facebook) acquired Oculus VR, a company leading the development in the first VR headsets. Since, the company has released its own headsets under the title of the ‘Meta Quest’. Using Oculus’ technology and integrating it into Facebook’s portfolio, much of Meta’s resourcing is now focused on what they deem to be ‘the future of connection’; the ‘metaverse’.
The metaverse is marketed as a platform accessed in the forms of both virtual and augmented reality in which people can use Meta’s own headset or their smartphone to interact with a multitude of features. Creativity and learning is central to the proposal of the metaverse as a new form of connection, encompassing applications that allow you to meet with people in a virtual meeting environment with avatars, despite them being across the world, as well as using the mix of virtual tools and real-life elements to help learn new skills. The desire for virtual platforms in which people can replicate real life interactions has undoubtedly been spurred by the rise in home-working and isolation in a post-pandemic society.
There is an important distinction between online games in the traditional sense and games within the Metaverse: its immersive quality. When wearing a VR headset, your whole environment becomes ‘the game’ you are playing. As Wilkinson, Brantley and Feng note, VR has ‘a more palpable sense of presence compared to traditional two-dimensional displays’. VR’s immersive nature has also been found to elicit strong emotional and psychological responses. Immersivity in virtual reality can additionally be enhanced using body trackers and haptic feedback gloves and even suits to transpose the feeling of touch in the game to your real life senses.
If we embrace Meta’s vision of the Metaverse as an almost virtual replica of what is outside of our homes, and even beyond, pertinent questions arise. How are we to regulate this virtual society to ensure that wrongdoings committed in real-life are not transposed to the Metaverse? How can we ensure that the veil of anonymity that VR affords - that we don’t have the privilege of face-to-face - doesn’t lead to interactions akin to those of ‘trolls’ on social media?
Distilling these questions further to consider cases of misogyny and violence against women and girls means that the answers we are yet to discover are even more imperative. According to the charity Women in Games, 72% of female game players have experienced toxicity online, often with such toxicity leading to particularly violent cases of harassment, and even threats of a sexual nature. The campaign #NoRoomForAbuse surveyed that 80% of women affected by abuse in online games have received messages that were sexual in nature. 40% of women also felt that they were ‘personally threatened’ by the abuse they received.
It is important to note that these statistics likely arise from the use of traditional, two-dimensional games. With VR’s defining feature being that of presence and immersivity, how can this harassment faced by women and girls change in its severity and, crucially, its effect?
In January 2024 it was reported that an incident of sexual assault that occurred to a girl under 16 in virtual reality was being investigated by the Metropolitan police. The impact of this incident has been said to have caused the girl psychological trauma akin to if the assault had occurred in real life. A revealing report by the organisation SumOfUs details harrowing accounts of female researchers for the organisation playing Meta’s own ‘Horizon Worlds’ social platform. Incidents within the game include verbal and physical sexual harassment and abuse, all of which were heightened by the haptic feedback of the controllers and the immersive nature of the VR headset. One researcher described her feeling during the experience as ‘disassociated’ and ‘disorientated’. The report also outlined that other researchers witnessed or were victims of homophobia and racism in both Meta’s own and third-party platforms.
Meta’s attempt to regulate unwanted interactions in ‘Horizon Worlds’ has been he introduction of a ‘personal boundary’. This prevents other players’ avatars from coming within four feet of a player’s avatar. The boundary is always on by default from the moment the player begins playing the game but can be turned off in settings. Recent developments of the ‘personal boundary’ have included avatar’s ‘fading faster’ when approaching the boundary. As well as this, ‘positive social interactions’ such as high fives producing haptic feedback when the boundary setting is still on. However, muting voices and reporting features remain like those pre-existing in traditional games.
Evaluating the examples of the sexual harassment and abuse of women and girls in VR experiences, it is clear that VR and the metaverse are nowhere near well-equipped to ensure that women and girls feel safe using their platforms. Despite the ‘personal boundary’ introduction by Meta into ‘Horizon Worlds’, there remains the possibility that third-party games may not be equipped with features that are necessary to prevent physical encroachment. A researcher in the SumOfUs report also noted that she was routinely encouraged to disable the boundary setting which almost immediately led to the onset of sexual assault. The resistance to such peer pressure may be subjective to the individual playing, particularly younger girls who may find it difficult to anticipate what might happen if they were to turn off the boundary or to withstand pressure from other players. Through no fault of their own, young girls are particularly at risk of psychologically damaging events through virtual reality platforms.
Finally, it is essential that if VR and the metaverse are to be ‘the future of connection’ Meta so describes, the law will have to account for the possibility of the abuse and physical assault in virtual reality platforms to be actionable under pre-existing law, both in a criminal and civil context.
The Sexual Offences Act 2003 represents the current law with regards to sexual offences. Section 3 states that with regards to sexual assault:
1)A person (A) commits an offence if—
(a)he intentionally touches another person (B),
(b)the touching is sexual,
(c)B does not consent to the touching, and
(d)A does not reasonably believe that B consents.
The law as emphasised in bold currently outlines that ‘touching’ is a key element to the offence. ‘Touching’ in this section encompasses ‘touching another person with any part of the body, or with anything else’. As previously outlined, haptic feedback is a common feature of the VR’s immersive experience which provides the user with a ‘tactile response’ akin to touch. With an eye to future use of VR and the metaverse’s expansion, immersion could be greater with the use of haptic feedback gloves and suits with advanced technology that replicates what we understand as ‘touch’. If an instance of sexual assault was to be committed in the metaverse with the use of tactile ‘haptic’ instruments, it would be a significant point for further development of the criminal law on whether non-consensual ‘touch’ in a virtual world falls under the meaning of section 3.
With regards to the law of tort, Conaghan outlines that harassment doesn’t give rise to a course of action in and of itself, but rather falls under the umbrella of the tort of trespass to the person. Assault presents itself as the most logical cause of action against someone who has been threatened with sexual assault or abuse in the metaverse as such threat creates a fear of some type of ‘immediate apprehension of unlawful violence’. The case of R v Ireland could assist in a claim regarding a VR environment with regards to a fear of immediate apprehension in criminal cases concerning assault, as well as tort cases regarding trespass to the person. Due to the use of words constituting that of harassment causing psychiatric harm, a claim may be actionable regarding both the criminal and civil law if the claimant feared that violence may occur in the near future. This is despite the remote nature of the metaverse or VR environment. Notably, this case is regarding landline communication from 1998 so it is hardly apt to evaluate the metaverse as an emerging communication form. However, its principle may stand as a way for harassment within a virtual reality environment to be actionable in the current common law and statutory frameworks in both civil and criminal law contexts.
These are just two examples of how current legal frameworks could be used in both civil and criminal contexts to create the basis for either prosecutions related to sexual harassment, or courses of action in trespass to the person, for those who have suffered sexual harassment within virtual reality contexts, particularly women and girls. Regardless of the current law, there is undoubtedly a long way to go until clear law and regulation is established for virtual reality communications. Much like current discussions regarding AI, similar considerations for regulation and law of virtual reality environments must be considered. Women and girls should be able to experience virtual reality in a safe environment without feeling fear within their own homes. If the metaverse is to become ‘the future of communication’, women and girls should be the cornerstone of the establishment of future technological advancement. This cannot be done if they are made to feel excluded and unsafe.